Mere Denial In Affidavit Doesn't Attract Offence Under Section 193 IPC

The Supreme Court has on August 13, 2024; in a judgement in the case of James Kunjwal Versus State Of Uttarakhand & Anr. noted that where there was only suspicion, or inaccurate statements, or even a denial simpliciter without mala fide intention, the person cannot be charged for perjury. 
The bench of Justice B R Gavai, Sanjay Karol and K V Vishwanathan has quashed an order passed by the Uttarakhand High Court on October 1, 2022 which sought to order proceedings against James Kunjwal. The HC had stated that Kunjwal had indeed submitted a false affidavit during the course of hearing of the proceedings concerning cancellation of bail in a rape case registered on a false pretext of marriage. 
The bench said, ‘The statement made by the appellant, which has been considered as fit for the offence of giving false evidence before the court, generally called perjury, was more in the form of denial of the statements made in the affidavits of the complainant herein.’ 
Following the High Court’s direction, further FIR under Section 193 of IPC was lodged at the CJM, Nainital. At the top court, the appellant argued that if one merely denies the contents of the averments in the pleadings, then perjury has not been committed. 
Additionally, a court is not ‘compelled’ to make a complaint under Section 195(1)(b), Code of Criminal Procedure, 1973 if it feels that it is not expedient in the interest of justice to do so – for counsel. The respondent-complainant also argued that the appellant had misrepresented and twisted certain facts, some of which included the fact that he was still in a relationship with the complainant after he had been scheduled to get married to someone else, and that he forced the complainant to abort her pregnancy.
The court considered the question as to whether the contents of the affidavit filed before the High Court constituted an offence under Section 193, for the definition of which is given in Section 191, IPC. 
It pointed out that section 195(b)(1) of CrPC stipulates that no court shall take cognizance of any offence hereby committed under Sections 193 to 196, 199, 200, 205-211 of the IPC with the exception of on the complaint in writing of the court or by an officer of the court, authorised in that behalf. Section 340 meant the procedure in respect of the prosecution as provided under Section 195. 
 Having cited various judicial pronouncements, the bench culled out the principles: 
 The above position is premised on the fact that: 

1. If the Court is to awaken and come to some measure of appreciation of the fact that under prima facie there is reasonable and legal ground to commence legal action against the accused person who has made false statement(s).
2. They should be commenced where doing that is “conducive” to the interests of justice for punishing the delinquent not because of the inaccuracy which may have been spoken but is probably innocuous/irrelevant. One of the parties should have either made a statement that the other knew was false or made a false statement about a material fact’;
3. The court should be sure that there is a reasonable basis for preferring the charge, with proof and not presumption;
4. It should be commenced in extraordinary situations such as when the parties have lied to the court for the purpose of receiving favorable decrees from the court. 

The court provided that such prosecution would not be fair if these conditions are not met in such cases. 
The bench here went to hold that it cannot be argued that the statements made in the affidavit were only to give his side of the story and/or to deny the account given by the complainant. 
The court backed such a proposition by asserting that a denial simpliciter cannot get one over the hurdle, especially when there cannot be anything wrong, malicious or calculated in the statement made by the appellant in the affidavit.
It clarified that the mere suspicion or making of wrong statements are not enough to pull the offence under the Section, they explained. 
“We are also of the firm opinion that such statements do not make it expedient in the interest of justice, nor constitute exceptional circumstances in which such Sections may be invoked. If these proceedings would amount an offence apart from the one for which the appellant is already under trial, it cannot be said with certainty that there has been a deliberate falsehood on a matter of substance.”
The court also observed that in her counter affidavit filed here the woman respondent made no particular allegation or provided any of the material that was allegedly placed before the competent prosecuting authorities or the court. 
She only asked untruth to be on the part of the appellant, to tell the whole world that the court was right in proceeding against him for making the falsehood. She also made some other statements some of which are as follows which go to the merits of the present case as well as the trial of the main offence which is pending before the court of competent jurisdiction, the court noted. 
The Court has, therefore, dismissed the appeal and annulled the proceedings.

WHAT IS PERJURY?

Perjury is the process of causing obstruction in the delivery of justice. The offence is grave as it goes to the root of the system because it affects the process of judicial dispensation. Giving out false testimonials or propounding false statements or producing such false documents can be considered as committing the offence of perjury. There is need for Courts to accord the offence of perjury the seriousness it deserves and prosecute the offenders. 
In Mohan Singh v. Amar Singh (1998) 6 SCC 686, the Hon'ble Supreme Court held: 
Tempting with the record of the judicial proceeding and placing a false affidavit in a court of law has the recognizable tendency of causing annoyance to the due course of justice It vitiates and obstructs the free flow of a pool of clean water in justice and aims at dealing a blow in the rule of law It has been so accordingly observed that the stream of justice has to be kept clean and pure and no one have the liberty to mess it.
To illustrate this, in Swaran Singh v. State of Punjab (2000) 5 SCC 668 the Hon’ble Supreme Court pointed out that truth has become uncommon in courts, such is the extent of perjury. Judges do not easily prosecute offenders of perjury because they themselves must note the complaint. Therefore, the likelihood of perjurers being convicted is out of the question, which is a bonus to them. The Hon’ble Apex Court observed:
“36. … perjury has also become order of the day in the law courts. A trial Judge knows that the witness is telling lie and himself going back on his previous statement yet he does not want to punish him or even to get complaint against him He is himself required to sign the complaint which restraint him to get the complaint Perhaps the law requires an amendment to clause (b) of Section 340(3) of the Code of Criminal Procedure.”
 

WHAT MAKES UP FALSE EVIDENCE AND FABRICATING FALSE EVIDENCE 

 It can also be made out that where false statement is made in an affidavit intending it to be used in judicial proceedings it constitutes false evidence in the eye of law which is an offence under sections 191/192 IPC as held by the Hon’ble Supreme Court in Baban Singh v Jagdish Singh (1966) 3 SCR 552. The Court observed: 
“7. Section 191 deals with the giving of evidence on oath and Section 192 contains the provisions of fabricating false evidence. When viewed under section 191 of the Penal Code, the offense consists of swearing falsely in a matter in which one is under oath to speak the truth because an affidavit is a sworn statement. It can thus be concluded that the definition of the offence of giving false evidence does apply to affidavits.”

APPLICABILITY IN CIVIL CASES 

Pursuant to rule 15 of the order 6 of the code of civil procedure, it is provided that although the pleadings has to be signed and verified by the party which has knowledge about the facts of the case, it can be done only along with an affidavit. The proof of necessary essentials of a pleading is to affix responsibility upon the person making the verification as according to the law pleadings must be true and any false verification puts the party in a position to be liable for punishment under section 191 and 193 of IPC. 

RECOURSE AVAILABLE 

To counter this menace of perjury, the section 195 of the CrPC has been provided. As stated in Patel Laljibhai Somabhai v State of Gujarat & Ors (1971) 2 SCC 376 Cr PC 441 the purpose of S 195 CrPC is to allow the court where the proceedings are taking place to present the complaint as the offence affects the capacity of the court. According to the Indian Penal Code the power of taking Cognizance of an offence lies with the Magistrate under section 190 CrPC. But Section 195 CrPC hold a prohibitory provision with respect to the Magistrate taking cognizance of the offences except the case when a complaint is made in writing by a Public Servant for offences come under sub clause 1(a) and when the complaint is made in writing by a ‘court’ for the offences under sub clause 1(b). The Hon’ble Supreme Court observed: 
“7. The objectives of enacting Section 195(1)(b) and (c) and Section 476 seems patently to control the temptation which is open to the private parties who considered themselves to be aggrieved by the offences enumerated in the said section to prosecute a criminal case on frivolous, vexatious or insufficient grounds primarily out of revengeful intention to annoy or humiliate an opponent. The following offences have been chosen to be regulated by the court because they are the offences that are closest to the functioning of the court. It is the judicial process, or the administration of public justice, which is the direct and immediate object or victim of those offences, and it is only by deceiving the courts and thus evading the due course of the law and justice that the ultimate object of prejudicing the rights of the private party is intended to be affected. True to this fact, as the mechanical, organizational, moral, and physical purity of the proceedings of the court is directly sullied by the crime, the Court alone is deemed entitled to consider the desirability of reporting the guilty party. The private party intended to be harmed, through the commission of the offence against the administration of public justice is, no doubt, entitled to approach the court, to seek its influence on the filing of the complaint. But such party is deprived of the general right under Section 190 CrPC under the provisions of which the parties affected by the crime directly initiate the criminal proceeding…”
The aggrieved party may approach the court and can file an application under section 340 CrPC concerning offences enumerated in section 195 CrPC. Section 340 of CrPC enunciates the procedure to be adopted in relation to offences described under Section 195 of CrPC. The Court has the discretion to make an order requiring a preliminary enquiry as to whether the provisions of Section 195(1)(b) are met. The Court thus prepares a written complaint and serves it on the Judicial Magistrate of First Class having territorial jurisdiction. Section 341 CrPC contains the provision for an appeal against a judgment a judgment in aid of civil court.